This is a suit to enjoin the Secretary of the Interior and the Commissioner of the General Land Office from canceling a selection of indemnity lands under a railroad land grant. The trial court dismissed the bill, and the Court of Appeals reversed that decree and directed that an injunction issue. Central Pac. Ry. Co. v. Lane, 46 App. D. C. 374, Ann. Cas. 1918C, 1002. An appeal under section 250, par. 6, of the Judicial Code (Comp. St. § 1227) brings the case here.
The allegations of the bill were admitted by a motion to dismiss, upon which the defendants announced their purpose to stand; and the case as thus made is as follows:
By the Act of July 25, 1866, c. 242, 14 Stat. 239, a grant of public lands in California and Oregon was made 'for the purpose of aiding in the construction' of a line of railroad from a point in Sacramento Valley to Portland, 'and to secure the safe and speedy transportation of the mails, troops, munitions of war and public stores' over such line. The part of the grant in California was made to the California and Oregon Railroad Company, its successors and assigns, and the part in Oregon to another company. The grant was in present terms-'there be, and hereby is, granted'-and was of 'every alternate section of public land, not mineral, designated by odd numbers,' within designated limits on each side of the line. With this was coupled a provision that—
'When any of said alternate section or parts of sections shall be found to have been granted, sold, reserved, occupied by homestead settlers, pre-empted, or otherwise disposed of, other lands, designated as aforesaid, shall be selected by said companies in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections designated by odd numbers as aforesaid, nearest to and not more than ten miles beyond the limits of said first-named alternate sections.'
The line of the road was to be definitely located by filing a map with the Secretary of the Interior; and the work of construction was to be completed in sections of twenty miles within a time named, which was extended to July 1, 1880, by an amendment of June 25, 1868. 15 Stat. 80, c. 80. The completion of each section was to be ascertained and reported by commissioners appointed by the President, whereupon patents for the lands coterminous therewith were to be issued. The railroad was to be and remain 'a public highway for the use of the government of the United States, free of all toll or other charges' for the transportation of its property or troops. An assent to the act on the part of each grantee was to be filed within one year after its passage.
The California and Oregon Railroad Company duly assented to the act, definitely located its part of the line by filing the required map, and constructed, completed and equipped that part of the railroad within the extended time. The completion was duly reported by the commissioners and was recognized by the President. In addition, that company and its successors have complied with the act in all other respects. The Central Pacific Railway Company, the plaintiff, became the legal successor of that company in 1899, and holds its rights, title and interest under the grant. The part of the road in Oregon also was completed, but that is not of present concern.
In the process of adjusting the grant it has developed that many of the designated sections in the place limits were lost to the grant by reason of other disposals, homestead settlements and pre-emption claims antedating the definite location of the line of the road, thereby making it necessary to resort to the indemnity limits to satisfy the grant. The present ascertained losses amount to thousands of acres, and it is certain that further substantial losses will develop as the adjustment proceeds. As yet it is impossible to determine even approximately the total losses, because a material part of the grant is still unsurveyed; and this makes it uncertain whether all can be made good from the lands available for indemnity.